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GAUTAM v. BARR (2020)

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United States Court of Appeals, Ninth Circuit.

Ganesh GAUTAM, Petitioner, v. William P. BARR, Attorney General, Respondent.

No. 18-71657

Decided: September 16, 2020

Before: BADE and BUMATAY, Circuit Judges, and MÁRQUEZ,** District Judge. Robert Bradford Jobe, Esquire, Attorney, Law Office of Robert B. Jobe, San Francisco, CA, for Petitioner Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, Gregory Darrell Mack, Esquire, Senior Litigation Counsel, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent


Ganesh Gautam petitions for review of the Board of Immigration Appeals (BIA) order dismissing his appeal from an Immigration Judge's (IJ) denial of his applications for asylum and withholding of removal. We review the agency's factual findings for substantial evidence. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition for review.

1. Credibility determinations are based on the “totality of the circumstances, and all relevant factors,” including “the consistency between the applicant's ․ written and oral statements.” 8 U.S.C. § 1158(b)(1)(B)(iii) (asylum); 8 U.S.C. § 1231(b)(3)(C) (withholding of removal). When evaluating discrepancies between statements, “an omission may form the basis for an adverse credibility finding.” Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014).

Substantial evidence supports the determination that Gautam was not credible as to his testimony about a March 2008 encounter with the Maoists. Gautam testified that a gun was held to his head during that incident, but he omitted any mention of a gun in connection with that incident in the declaration supporting his asylum application. This was a material detail that changed the nature of the encounter and was more favorable to his position. See Zamanov v. Holder, 649 F.3d 969, 973-74 (9th Cir. 2011).

The only explanation Gautam provided for that omission was that he “didn't know” that he needed to include it. In contrast, Gautam's declaration mentioned a gun in connection with a February 2008 incident. Because these factors undermined Gautam's credibility, substantial evidence supports the adverse credibility determination and the BIA's determination that Gautam failed to show past persecution.

2. This court lacks jurisdiction to consider Gautam's claim that the IJ failed to undertake an individualized determination of his well-founded fear of future persecution because Gautam did not exhaust that claim, and the BIA could have remedied the alleged error. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).

3. Additionally, substantial evidence supports the determination that Gautam could safely and reasonably relocate within Nepal. See 8 C.F.R. §§ 1208.13(b), 1208.16(b); see also Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 999 (9th Cir. 2003).

Petitioner's motion for judicial notice is denied.


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